Spring 2016 Symposium

The Status of Antidiscrimination Law and Litigation in the United States

Friday, February 12, 2016

Contract Law Present and Future: A Symposium to Honor Professor Charles L. Knapp on Fifty Years of Teaching Law

Volume 66, Issue 4

Harry G. Prince

Instrumental Music and the First Amendment

Volume 66, Issue 2

Alan K. Chen

Strict Liability and the Anti-Paparazzi Act: The Best Solution to Protect Children of Celebrities

Volume 66 Online

Matthew Lee

UC Hastings' flagship law review has contributed to the advancement of knowledge in legal thinking through scholarly articles written by experts in the legal community. An occasional issue is devoted to a law symposium. The Journal publishes six times per year: December, February, April, May, June, and August.

Volume 66, Issue 5

Suppose a woman named Kate wants to start a bank. She has $5 of her own and knows a creditworthy entrepreneur (Will) who needs a $100 loan for a new project. She also knows lots of people who would happily deposit their savings with her. Should regulators permit Kate’s bank to borrow (from depositors) the extra $95 she needs to lend to Will? Or should it require her to borrow less and put up more of her own money before extending the loan? How much does it matter to financial stability?

Two superb accounts of the 2007–2008 financial crisis and subsequent reform efforts provide very different answers to these questions. Gary Gorton’s Misunderstanding Financial Crises is part of an influential line of papers and books that has placed him on former Federal Reserve Chairman Ben Bernanke’s recommended syllabus for those seeking a deeper understanding of the crisis. The Bankers’ New Clothes, by Anat Admati and Martin Hellwig (“A&H”), has been praised by luminaries across the political spectrum, and lauded by an economics Nobelist as worthy of comparison with John Maynard Keynes’s General Theory. . .

Gerald A. Byrnes
Corporate tax reform has been a “hot button” tax issue for numerous years now. The complex and inefficient double taxation model has proven to be particularly ill equipped to properly tax large multinational entities. One popular idea to solve these concerns is to switch to a consumption tax. However, there are still questions about how to model said tax, particularly in the international context: should a country tax be based on where products are destined for, or on where they originate? This Note focuses on the practical appeal of preferring the destination principle to the origin principle, should the United States adopt a corporate consumption tax. The practical benefits include aligning with international standards, facilitating corporate tax compliance in moving to the new system, preventing base erosion, and addressing complex tax issues such as the treatment of intellectual property across international lines.

Volume 66, Issue 4

Harry G. Prince
The American Association of Law Schools (“AALS”) Contracts Section listserv recently carried an online conversation that began with the question of whether anyone knew a case in which the court refused to enforce a contract because of its racial content. A lively and informative discussion ensued. One of the responses cited a case in which the court held that the refusal to contract based on race was wrongful, but the author went on to suggest she believed she had seen a case in an older edition of the Knapp casebook that held that an offer could be restricted on the basis on race. Shortly thereafter Professor Chuck Knapp confirmed that in the first edition of his casebook there had indeed been such a case, Maughs v. Porter, a 1931 Virginia Supreme Court decision. Professor Knapp went on to explain the holding in the case and its appearance, and subsequent disappearance, from the casebook. This brief exchange offers a number of insights about Professor Knapp’s stature and enduring contribution to the contract law academy.

Hazel Glenn Beh
This Article considers the unconscionability doctrine and confronts criticisms that the doctrine is fatally flawed as too vague, flexible, and ill-defined. It argues that unconscionability is a vital contract doctrine that entrusts common law judges with the latitude and discretion to safeguard essential contracting fairness and justice. Unconscionability serves as the line of demarcation between hard bargains and unfair bargains. This Article explores proposals to fortify and invigorate the unconscionabilitydoctrine in order to promote contracting fairness in an era where one sided, adhesionary contracts abound..

Volume 66, Issue 3

The task of determining which law governs a contractual choice-of-forum clause is an enigma to courts. The key to its solution lies at the very heart of the subject, where one encounters its most celebrated riddle: Which law governs when the parties have also agreed to a choice-of-law clause—that is, does a court first test the forum-selection clause under the law of the seised forum, or does one first look at the parties’ choice of law to apply the chosen law to the forum-selection clause?

This chicken-or-egg mystery throws courts into contortions. Prior commentators have opted for the chosen law. But differentiated cases, policy arguments, and doctrinal consistency all support applying lex fori to enforceability of the forum-selection agreement—while applying the chosen law as to the agreement’s interpretation or, in the absence of a choice-of-law clause, the chosen court’s law.

Voir Dire

R. Lawrence Dessem & Gregory M. Stein
There has been vigorous debate in recent months over whether a law degree is a worthwhile investment. Much of this discussion has focused on whether the economic costs of obtaining a degree pay off over a lawyer’s career. This conversation has largely overlooked the many non-economic benefits of a law degree. In this essay, we seek to re-introduce several non-economic factors back into this important dialogue. We suggest that prospective law school applicants would be wise to consider these non-economic factors in addition to economic ones.

Brian Christopher Jones
Throughout the years, the Naval Base at Guantanamo Bay has witnessed an abundance of intriguing linguistic words and phrases. For example, “Freedom Vanilla” replaced French Vanilla ice cream in the mess hall, andthe area where journalists and others were often sequestered during their visits to the base was re-named “Camp Justice.”3 The list goes on. However, the language that has had the most significant impact throughout the years has been the words and phrases used in the administration of justice regarding the detainees being held on terrorism charges.Wall St. Journal Supreme Court reporter Jess Bravin’s book, The Terror Courts: Rough Justice at Guantanamo Bay, thoroughly chronicles how the use of military commissions came about for the first time since the Second World War, and pointedly demonstrates the abundance of problems they faced once established. In addition to telling the story of Marine Corps lieutenant colonel Stuart Couch, an earnest military prosecutor who later becomes exhaustively disenchanted with the commissions, the book chronicles the new linguistic frontiers in the American legal community. In particular, the disturbing treatment of detainees and the hasty establishment of the commissions significantly troubled the process, leading to numerous problems that the commissions still face today, more than a decade after their establishment.

Julia Mas-Guindal
Throughout the years, the Naval Base at Guantanamo Bay has witnessed an abundance of intriguing linguistic words and phrases. For example, “Freedom Vanilla” replaced French Vanilla ice cream in the mess hall, andthe area where journalists and others were often sequestered during their visits to the base was re-named “Camp Justice.”3 The list goes on. However, the language that has had the most significant impact throughout the years has been the words and phrases used in the administration of justice regarding the detainees being held on terrorism charges.Wall St. Journal Supreme Court reporter Jess Bravin’s book, The Terror Courts: Rough Justice at Guantanamo Bay, thoroughly chronicles how the use of military commissions came about for the first time since the Second World War, and pointedly demonstrates the abundance of problems they faced once established. In addition to telling the story of Marine Corps lieutenant colonel Stuart Couch, an earnest military prosecutor who later becomes exhaustively disenchanted with the commissions, the book chronicles the new linguistic frontiers in the American legal community. In particular, the disturbing treatment of detainees and the hasty establishment of the commissions significantly troubled the process, leading to numerous problems that the commissions still face today, more than a decade after their establishment.

Jessica K. Fink
In Thompson v. North American Stainless, LP, the Supreme Court contradicted the federal appellate courts and unanimously held that Title VII prohibits employers from engaging in third-party retaliation. This Essay contends that because the Court failed to establish any meaningful boundaries for the scope of third-party retaliation doctrine, the doctrine’s benefits may not outweigh its potential costs.

Helen Norton
Despite our tough economic climate, many employers exclude currently unemployed workers from consideration for a wide variety of jobs. Not only does this practice seem cruel and unwise, but, as this Essay explains, under certain circumstances the practice may violate federal antidiscrimination law.

Symposium

Hastings Law Journal recently held its 2015 spring symposium, Federal Sentencing Reform, on February 13, 2015. The symposium focused on the current status of the federal sentencing system--how it operates, where it's headed, and its impact on the citizenry as a whole--some ten years after the Supreme Court's landmark decision in United States v. Brooker. The speakers included federal judges, legal scholars, economists, and practitioners, and the keynote address was delivered by U.S. District Judge Charles Breyer of the Northern District of California.
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February 2013
The Supreme Court of Minnesota cited a Symposium article from 2009. In State v. Craig, the Supreme Court cited Carlton F.W. Larson’s article Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1376 (2009). Professor Larson’s article included a discussion on the history of preventing felons from owning handguns and was featured in our 2009 Symposium, The Second Amendment After Heller. 826 N.W.2d 789, (Minn. 2013)

February 2013
The Third Circuit cited to the Hastings Law Journal again, this time including a citation to a Student Note from 1987. The Note, entitled The Consumer Trust Fund: A Cy Pres Solution to Undistributed Funds in Consumer Class Actions by Natalie A. DeJarlais, 38 Hastings L.J. 729, 730 (1987), had been quoted in an opinion from the D.C. Circuit in 1996. The Third Circuit, as well as the D.C. Circuit, was relying on the Note for the history of the Cy Pres doctrine. In re Baby Products Antitrust Litig., — F.3d — (3rd Cir. 2013).

January 2013
In their brief in Supreme Court case, McBurney v. Young, 133 S.Ct. 421 (2012), Respondents, Nathaniel L. Young Jr. and Thomas C. Little, also cited Justice Potter Stewart’s 1975 article, Or of the Press, 26 Hastings L.J. 631. The quote, “There is no constitutional right to have access to particular government information, or to require openness from bureaucracy…. The Constitution is neither a Freedom of Information Act nor an Official Secrets Act.” McBurney questions “Whether, under the Privileges and Immunities Clause of the Constitution, a state may preclude citizens of other states from enjoying the same right of access to public records that the state affords its own citizens.”

January 2013
In PG Pub. Co v. Aichele, — F.3d — (3rd. Cir. 2013), the Third Circuit included a quotation from Justice Potter Stewart’s 1975 Article, Or of the Press, 26 Hastings L.J. 631. Justice Stewart’s article had appeared in a prior Third Circuit decision from 1986, Capital Cities Media, Inc. v. Chester, 797 F.2d 1164, 1173 (3rd Cir. 1986). In noting the limitations of the Constitution and access to public openness, the Third Circuit wrote, “The press and public “‘must rely, as so often in our system we must, on the tug and pull of the political forces in American society.’”

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